Opinion
Case No. 8:13-cv-00262
04-28-2014
Mary WICKENKAMP, Plaintiff, v. Clay SMITH; Andrew Strotman; B & J Partners and ABC Corporation, its successor entity; Cline Williams Wright Johnson & Oldfather, LLP, a Nebraska limited liability partnership; John Doe No. 1; and John Doe No. 2, Defendants.
Mary Wickenkamp, Lincoln, NE, pro se.
Mary Wickenkamp, Lincoln, NE, pro se.
INTRODUCTION
Although based upon a submission by Cline-Williams and Andrew Strotman, the following represent my own words, findings of fact, conclusions of law and order after careful and independent investigation. The conduct of Mary Wickenkamp is beyond the pale.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
This matter is before the Court on the Motion for Sanctions and Order Enjoining Plaintiff from Initiating Future Litigation Against Cline Williams Defendants (Filing #60) filed by Defendants Andrew Strotman and Cline, Williams, Wright, Johnson & Oldfather, LLP (collectively "Cline Williams"). Cline Williams filed a brief and evidence in support of its motion. (Filing #61 and #62) Plaintiff Mary Wickenkamp ("Wickenkamp") did not respond. The Court, based upon the evidence presented and the Court's knowledge of other proceedings, finds that Cline Williams’ motion should be granted.
FACTUAL BACKGROUND
The circumstances giving rise to this litigation began as a simple contract dispute between Judith Trackwell and B&J Partnership, Ltd. ("B&J") arising out of the sale of real estate in Lincoln, NE. Wickenkamp was originally counsel for Judith Trackwell in the Nebraska Litigation. Cline Williams served as counsel for B&J and its principals.
See Filing #1 in Case No. 4:05-cv-03171 ("the Nebraska Litigation").
During the course of the Nebraska Litigation, Wickenkamp sent a series of increasingly threatening letters to B&J directly, rather than through its counsel, in an attempt to coerce B&J into closing the real estate transaction that was the subject of the original lawsuit. When these letters failed to produce the desired result, Wickenkamp amended her complaint to add new claims and new defendants to the litigation. Magistrate Piester set forth the facts surrounding this improper escalation of the litigation in detail in a Memorandum and Order in which he ordered that Wickenkamp be sanctioned for her conduct. These facts are summarized as follows :
Filing #44, Ex. 1 (Strotman Affid.), att. A at pp. 9-19.
Id.
Filing #81 in Case No. 4:05-cv-03171; Filing #44, Ex. 1 (Strotman Affid.), att. A.
Cline Williams requests that this Court take judicial notice of the pleadings in Case No. 4:05-cv-03171
• July 18, 2005 – Judith Trackwell filed her complaint against B&J and its principals. Her complaint alleged claims for breach of contract, tortious interference with a business relationship, and violations of Nebraska and federal antitrust laws.
• July 19, 2005 – Wickenkamp filed a disciplinary complaint against B&J's in-house counsel, Paul Conley. This complaint was later dismissed as meritless.
• July 28, 2005 – Wickenkamp filed an amended complaint in which it was alleged that B&J was using a nonprofit corporation "to create bogus
Filing #44, Ex. 1 (Strotman Affid.), att. A at p. 16.
Id. , at p. 17.
tax deductions to facilitate business transactions."
• July 29, 2005 – Wickenkamp filed a second amended complaint in which she added HomeServices of Nebraska, Inc., and Capitol Title Company as defendants. This complaint alleged that the new defendants attempted to impose new title insurance requirements on the underlying real estate sale in order to further B&J's goal of hindering plaintiff's ability to deliver good title at closing.
• August 1, 2005 – Wickenkamp sent a letter directly to B&J, rather than through its counsel, in which she threatened to file a third amended complaint alleging a civil RICO claim and demanding payment of compensatory damages of $2,275,000.
• August 1, 2005 – B&J retained Strotman and Cline Williams.
• Before Cline Williams began representing B&J, Wickenkamp served subpoenas to depose B&J and its representatives in an unrelated condemnation case involving a portion of Trackwell property that had been condemned by Lincoln Electric System ("the LES Litigation"). The property at issue in the LES Litigation was specifically exempted from the purchase agreement between Judith Trackwell and B&J. Wickenkamp nonetheless sought to depose B&J's representatives in the LES Litigation in order to develop evidence to support a third amended complaint in the Nebraska Litigation and to coerce B&J into acceding to her settlement demands.
• August 8, 2005 – Wickenkamp filed a third amended complaint without first obtaining leave of the court. This complaint alleged a civil RICO conspiracy among the defendants. This complaint was stricken.
Id. , at p. 20.
Id. , at pp. 20-21.
Id. , at pp. 21-22.
Id. , at p. 22.
Id. , at pp. 22-29.
Id. , at p. 32.
Cline Williams filed a motion to disqualify Wickenkamp and for sanctions on November 9, 2005. The Court found that Wickenkamp's conduct "represent[ed] an abuse of this court's processes, was conducted in bad faith, and is sanctionable under the court's inherent power." The Court entered judgment against Wickenkamp on the award of sanctions on November 16, 2006. A subsequent order refusing to set aside this judgment was affirmed by the United States Court of Appeals for the Eighth Circuit. Trackwell v. B & J Partnership, 416 Fed. Appx. 571 (8th Cir. 2011). Wickenkamp's abuse of the litigation process eventually led to her disbarment by the Nebraska Supreme Court. State ex rel. Counsel for Discipline of Nebraska Supreme Court v. Wickenkamp, 277 Neb. 16, 759 N.W.2d 492 (2009).
Filing #43 in Case No. 4:05-cv-03171.
Filing #81 in Case No. 4:05-cv-03171, at p. 57; Filing #44, Ex. 1 (Strotman Affid.), att. 1 at p. 57.
Filing #136 in Case No. 4:05-cv-03171.
On May 20, 2011, Wickenkamp filed suit in the United States District Court for the District of Oregon against Strotman and Cline Williams. This complaint raised many of the same allegations as the pending claim, including the allegation that Cline Williams used or disclosed information from unlawfully intercepted communications in violation of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2511, et seq. This action was dismissed for lack of personal jurisdiction on August 3, 2012, and is currently on appeal to the United States Court of Appeals for the Ninth Circuit.
See Filing #2 in Case No. 3:11-cv-00624.
Id.
Filing #64 in Case No. 3:11-cv-00624.
Case No. 12-35724.
Wickenkamp filed the current complaint on March 5, 2013. Wickenkamp alleged Cline Williams violated Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2511 et seq. Wickenkamp contended that Cline Williams "used" information "obtained from the unlawful interception of communications between Lloyd Trackwell and [Wickenkamp]" to "take action against [Wickenkamp] and against Lloyd Trackwell in Oregon and Texas." Wickenkamp did not claim Cline Williams was involved in the actual interception of the communications. Rather, she alleged the interception of her communications with Trackwell "is believed to have occurred in the State of Oregon and are [sic] believed to have been communicated to Defendants in Nebraska...." She sought economic and non-economic damages (including damages for severe emotional distress and an exacerbation of existing health problems), punitive damages, costs, and a reasonable attorney fee.
Filing #1.
Filing #1,¶ 17.
Id.
Id.
Id. , ¶ 19.
Cline Williams moved this Court for a summary judgment in their favor because (1) Wickenkamp's claims lacked any factual or evidentiary basis, and (2) Wickenkamp's claims were barred by the statute of limitations. In lieu of filing a substantive response, and evidence either supporting her claim or creating a genuine issue of material fact, Wickenkamp filed a Suggestion in Bankruptcy. She mailed it to the U.S. District Court for the Southern District of Texas despite the fact that the case had been transferred to the U.S. District Court for the District of Nebraska several months earlier. This Court eventually received Wickenkamp's Suggestion in Bankruptcy three weeks later, on November 21, 2013. This was approximately two weeks after the bankruptcy court had already dismissed her bankruptcy petition for failing to comply with the court's order to correct deficiencies in her bankruptcy filing and ten days after her summary judgment response was due.
Filing #42.
Filing #50.
Id.
Filing #23.
Filing #50.
See Index, Ex. 1 (Affidavit of William R. Settles (II) ("Second Settles Affid.")), att. A.
Wickenkamp's response was due on November 12, 2013. See Filing #53 ("Plaintiff's responses to [Defendants’ motions for summary judgment and to dismiss] were due on November 12, 2013. Plaintiff failed to respond within the prescribed time.")
A few days later, on November 25, 2013, Wickenkamp filed a motion for extension of time to respond to Cline Williams’ summary judgment motion (and the remaining defendants’ motion to dismiss). With it, she submitted an unverified affidavit in which she alleged she was medically disabled and that her disability and limited SSDI income "hamper[ed] [her] ability to respond quickly to matters in this litigation." Wickenkamp further alleged she had difficulties receiving timely information about the Nebraska Litigation because, despite her medical frailties, she had traveled hundreds of miles from her home state of Texas to the states of Oregon and Missouri to assist family members "with personal family business." She indicated she intended to file a motion requesting the opportunity to conduct discovery "so that I may obtain evidence that can be introduced to assert my position."
Filing #51.
Filing #52 (Affidavit of Mary C. Wickenkamp ("Wickenkamp Affid."), ¶ 3.
Id. , ¶ 4.
Id. , ¶ 6.
On November 27, 2013, this Court entered its Memorandum and Order finding that Wickenkamp's suggestion of bankruptcy did not stay this case and, further, that Cline Williams was entitled to summary judgment. Specifically, this Court concluded that Strotman's affidavit, "in connection with other evidence in the record, provides a sufficient showing that there is no factual basis for the claims that Wickenkamp has made against him and Cline Williams." In the absence of evidence supporting her claims, summary judgment was proper.
Filing #53.
Id. , p. 10.
Id.
More than a month later, on January 1, 2014, Wickenkamp filed a Rule 56(d) motion requesting an unspecified amount of time to conduct discovery before being required to respond to the already-decided summary judgment motion. She also filed a separate motion requesting leave to file the Rule 56(d) motion out of time. In conjunction with these filings, Wickenkamp included an affidavit that was nearly identical to the affidavit she had filed in support of her previous motion for extension of time and that the Court had already determined was insufficient.
Filing #55.
Filing #54.
Filing #52.
On January 6, 2014, the Court summarily denied her motions. Wickenkamp's motion was, for all intents and purposes, a motion for reconsideration under Rule 60(b) and Wickenkamp had not met the showing of excusable neglect sufficient to warrant consideration of her Rule 56(d) motion. In addition, while Wickenkamp's discovery request turned primarily on her effort to prove a "continuing violation" in order to avoid the clear statute of limitations defense, the Court did not rely on the statute of limitations when granting summary judgment. Rather, it held that Wickenkamp had "no factual basis" for her claims against Cline Williams. As a result, "Plaintiff's showing [was] not sufficient under Rule 56(d)."
Filing #58.
Id. , p. 3.
Id. (quoting Filing #53 at p. 10).
Id. , p.4.
The Court notes that Wickenkamp has a long history of engaging in harassing litigation that she then fails to pursue. The Court takes judicial notice of the following cases:
• Trackwell v. County of Lancaster, et al., Case No. 4:04-cv-03397 – voluntarily dismissed after order to show
cause why case should not be dismissed for want of prosecution.
• Trackwell v. Hoppe, et al., Case No. 4:05-cv-03197 – voluntarily dismissed after order to show cause why case should not be dismissed for want of prosecution.
• Trackwell v. Jacobsen, et al., Case No. 4:02-cv-03072 – dismissed for failure to serve any defendant.
• Trackwell v. City of Lincoln, Case No. 4:03-cv-03368 – dismissed for want of prosecution.
• Trackwell v. City of Lincoln, Case No. 4:04-cv-03166 – dismissed for want of prosecution.
• Wickenkamp v. Hampton – Case No. 3:13-cv-00152-BR (United States District Court for the District of Oregon) – dismissed for failure to serve defendants.
The Court also notes that Wickenkamp demonstrated her propensity for threatening further litigation in order to obtain concessions from Cline Williams as recently as April 14, 2014. On that date, Wickenkamp sent a letter to Cline Williams’ counsel in which she demanded their cooperation in setting aside this Court's rulings or she would "assert [her] rights by seeking to intervene in Hampton v. Steen, Case No. 2:12cv00440SU, U.S. District of Oregon [sic]." It is clear that this Court must take further action to prevent Wickenkamp's continued abuse of the litigation process.
Filing #64 at Ex. 1, att. A.
FINDINGS OF FACT
The Court finds as follows:
1. The Complaint in this case was baseless and filed for the purpose of harassing the defendants. Despite numerous opportunities to do so, Wickenkamp has produced no evidence in support of her allegations. Instead, she has filed numerous frivolous motions, including:
(a) An August 9, 2013 motion to extend her deadline to respond to Cline Williams’ Motion to Transfer Venue. This was filed after Wickenkamp ignored the order of the United States District Court for the Southern District of Texas that she provide a letter from her surgeon confirming her medical condition not later than July 31, 2013.
(b) A November 25, 2013 motion to extend her deadline to respond to Cline Williams’ Motion for Summary Judgment. This was filed approximately two weeks after Wickenkamp's response to Cline Williams’ summary judgment motion was due. In support of this motion, Wickenkamp submitted an unverified affidavit in which she alleged various physical and logistical limitations on her ability to timely respond to Cline Williams’ motion. This affidavit was not credible and was wholly insufficient to provide the relief requested.
(c) A Rule 56(d) motion requesting an unspecified amount of time to conduct discovery before being required to respond to Cline Williams’ already-decided Motion for Summary Judgment and a Motion for Leave to File Motion Out of Time. Wickenkamp supported
Filing #51.
Filing #52.
Filing #55.
Filing #54.
these motions with an affidavit that was nearly identical to the one the Court had already determined was insufficient.
2. Wickenkamp filed a deficient bankruptcy petition, and failed to correct the deficiencies in the petition when ordered to do so by the United States Bankruptcy Court, for the sole purpose of delaying or disrupting these proceedings. This was an act undertaken in bad faith, was an abuse of the judicial process, and vexatiously multiplied the proceedings before this Court.
3. Wickenkamp's claims that her health and indigency prevented her from participating in this litigation are not credible. She made similar arguments before the United States Court of Appeals for the Ninth Circuit in an effort to obtain multiple extensions of her brief date. However, during the period of time that her health allegedly prevented her participation in that litigation, Wickenkamp was able to file a 49-page complaint against seven defendants in the United States District Court for the District of Oregon, Wickenkamp v. Hampton, et al., Case No. 3:13-cv-152BR, file an 11-page, single-spaced complaint against attorneys Rahn Hostetter and Rebecca Knap with the Oregon Bar Association, and initiate this action in the United States District Court for the Southern District of Texas. In addition, Wickenkamp describes traveling to multiple states to handle important family business despite her allegedly debilitating health condition. All of this evidence belies Wickenkamp's excuses for not timely participating in this litigation and demonstrates that this action was undertaken in bad faith and for the purpose of harassing the defendants.
4. Wickenkamp demonstrated her willingness to threaten baseless litigation in order to coerce cooperation out of the defendants in this case as recently as April 14, 2014. On that date, Wickenkamp sent a letter to defendants’ counsel in which she threatened to intervene in litigation in the United States District Court for the District of Oregon if the defendants would not accede to her demand that they agree to set aside the Court's previous orders and grant her additional time to respond to defendants’ various motions. Neither disbarment by the Nebraska Supreme Court nor a previous sanction order by this Court has deterred Wickenkamp's ongoing abuse of the litigation process. This Court must intervene to protect Cline Williams from further harassment and to maintain the integrity of the judicial process.
Filing #52.
Filing #12-2, Ex. A at filing numbers 6, 18, 21, and 22; Index, Ex. 1, at ¶ 3 and att. C.
Filing #12-7 at ¶ 8 and Ex. E.
Id. at ¶ 9 and Ex. F.
Filing #1.
Filing #52.
Filing #64 at Ex. 1 and att. A.
CONCLUSIONS OF LAW
1. The Court retains jurisdiction to sanction Wickenkamp despite the prior dismissal of this action. See, e.g., Obin v. District of the International Assoc. of Machinists & Aerospace Workers, 651 F.2d 574 (8th Cir. 1981). 2. The Court has authority to sanction Wickenkamp's abuse of the judicial process through the Court's inherent powers. See Chambers v. NASCO, Inc., 501 U.S. 32, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991) ; Stevenson v. Union Pacific R. Co., 354 F.3d 739 (8th Cir. 2004).
3. The Court has authority to enjoin Wickenkamp from participating in further litigation against the defendants pursuant to the Court's inherent powers and the All Writs Act. See 28 U.S.C. § 1651 ; Green v. Warden, U.S. Penitentiary, 699 F.2d 364 (7th Cir. 1983) ; U.S. v. Int'l Broth. of Teamsters, 939 F. Supp. 280 (S.D.N.Y. 1996).
ORDER
It is therefore ORDERED as follows:
1. Cline Williams’ Motion for Sanctions is granted. Cline Williams shall submit a Bill of Costs, to include the reasonable attorney fees incurred in the defense of this action, to the Court within 14 days of the date of this Order.
Filing #60.
2. Cline Williams’ Motion for Order Enjoining Plaintiff from Initiating Future Litigation Against Cline Williams Defendants is granted. Wickenkamp is hereby enjoined from initiating new litigation against Andrew Strotman or Cline, Williams, Wright, Johnson & Oldfather, LLP, and from intervening in any existing litigation involving said parties, in any forum. Should Wickenkamp wish to initiate new litigation against Andrew Strotman or Cline, Williams, Wright, Johnson & Oldfather, LLP, or to intervene in existing litigation involving said parties, in any forum, she must first apply for and be granted leave of this Court. Such an application must be accompanied by competent evidence sufficient to demonstrate both that the litigation is brought in good faith and that the litigation does not involve any issue that was raised, or that could have been raised, in the present action. Any such application found to lack a good faith basis or sufficient evidentiary support, or which attempts to raise issues that were raised, or that could have been raised, in the present action, shall result in further sanction by the Court.
Id.
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IT IS SO ORDERED this 28th day of April, 2014.